Opinion
No. CV 03 0070458
January 6, 2006
MEMORANDUM OF DECISION
By way of a two-count complaint, the plaintiff, Mark Christensen, commenced the present action against the defendants, Linda Reed, Scott Reed and SP Ventures, LLC. Count one of the plaintiff's complaint seeks to quiet title to a certain right of way, and, in count two, the plaintiff seeks a declaratory judgment of an easement by necessity over the defendants' property. This matter came for trial before this court on May 10 and 11, 2005.
The original right of way (cart path) came into existence by way of a deed from Francis B. Pellett to Thomas Shea, dated January 15, 1880 at Volume 28, Page 354 of the Canterbury Land Records. This right of way, or easement was subject to a specific seasonal limitation, from October 1 to April 1 of each year, to access a claimed wood lot retained by the plaintiff's predecessor in title. This claimed right of way by deed appears only once in the chain of title of any of the parties between 1880 and 1984 (when the plaintiff acquired title to the property by way of five quitclaim deeds and a sixth document containing an "assignment of interest"). A portion of the subject property also appears to be in the name of Ella Christensen. None of the conveyances by which the plaintiff acquired title to the property contained a habendum clause or other language purporting to convey a right of way or easement across the servient estates even though, without the right of way, the plaintiff's parcel is landlocked.
The language regarding a right of way is contained solely in the plaintiff's chain of title from Pellet to Shea. The defendants' chains of title, from Francis B. Pellet to Mary S. Chase, dated March 14, 1889 at Volume 29, Page 416 of the Canterbury Land Records, contains no habendum clause or reservation of a right of way in the name of the grantor of the servient estate.
In the first count of his complaint, the plaintiff claims a right of way by deed based upon a deed from Pellett to Shea, previously mentioned, dated January 15, 1880. In the second count, the plaintiff claims an easement or right of way by necessity claiming that the common grantor, by this conveyance, left the plaintiff landlocked so that the plaintiff has no access to any public highways.
Each of the defendants filed answers and special defenses to the plaintiff's complaint. In their special defenses, each of the defendants raise the issues of abandonment of the right of way by the plaintiff; that the plaintiff's claim is barred by the Marketable Record Title Act (MRTA), General Statutes §§ 47-33b through 47-33l; that the right of way, if it exists at all, is subject to the parameters as set forth in the January 15, 1880 deed; that because the plaintiff received his original limited right of way by deed, no claim for an easement by necessity can be made; and that the doctrine of laches applies.
COUNT ONE
The defendants argue that the purported right of way has been abandoned by the plaintiff. "Whether there has been an abandonment is a question of intention to be determined from all the surrounding circumstances, and is a question of fact and not of law. The proof must clearly indicate that it was the intention of the owner of the dominant estate to abandon the easement . . . [Abandonment] implies a voluntary and intentional renunciation, but the intent may be inferred as a fact from the surrounding circumstances . . . Although, before legal abandonment can be found, there must be proof of an intent to abandon; that requirement can be met without resort to proof of specific intent. Most frequently, where abandonment has been held established, there has been found present some affirmative act indicative of an intention to abandon . . . but nonuser, as of an easement or other negative or passive conduct may be sufficient to signify the requisite intention and justify a conclusion of abandonment. The weight and effect of such conduct depends not only upon its duration but also upon its character and the accompanying circumstances." (Citations omitted; internal quotation marks omitted.) Friedman v. Westport, 50 Conn.App. 209, 212-13, 717 A.2d 797, cert. denied, 247 Conn. 937, 722 A.2d 1216 (1998).
The evidence presented demonstrates to the court that the deeded easement claimed by the plaintiff was a six-month seasonal access to the defendants' property which was abandoned by the plaintiff and his predecessors in title as evidenced by numerous acts and failures to act for a period of at least seventy years. Although the plaintiff claims to have utilized the right of way to some extent after acquiring the property in 1984, it is clear to the court that physical non-use of the right of way and its absence from both chains of title in numerous recorded deeds is sufficient to constitute abandonment. Although conflicting evidence was presented as to the existence of just such a cart path, it was impossible for the court to determine whether or not this challenged cart path existed during the time period necessary to establish marketable title. General Statutes § 47-33h.
Although the habendum clause was present in the 1880 deed, the failure of the plaintiff and his predecessors in title to include the seasonal easement in any subsequent deeds extinguishes the easement by operation of law under the provisions of the MRTA. The MRTA, § 47-33c, provides in relevant part that "[a]ny person . . . who has an unbroken chain of title to any interest in land for forty years or more, shall be deemed to have a marketable record title to that interest [subject to certain statutory exceptions delineated in the MRTA]." Under the statute, the only exceptions to that interest are contained in § 47-33d, which in turn references § 47-33h, which exempts easements from extinguishment where there is some physical evidence of the easement on the land. Section 47-33h provides in relevant part that the MRTA "shall not be applied . . . to bar or extinguish any easement or interest in the nature of an easement . . . if (1) the existence of such easement or interest is evidenced by the location . . . upon or above any part of the land described in such instrument of any . . . road, . . . . . . track, . . . or other physical facility . . ."
Recently, our Appellate Court confronted very similar facts in Johnson v. Sourignamath, 90 Conn.App. 388, 877 A.2d 891 (2005). In Johnson, the plaintiff owners of a landlocked parcel sought a judgment declaring the rights of the parties to a claimed right of way over the defendants' properties. The trial court ruled in favor of the plaintiffs and the defendants appealed. The Appellate Court held that the right of way that the plaintiffs, or their predecessors in title, might once have possessed had been extinguished by operation of the MRTA. Consequently, the Appellate Court reversed the judgment of the trial court. The Appellate Court ruled that the trial court improperly applied the provisions of the MRTA from the perspective of the plaintiffs' chain of title rather than from that of the defendants, whose properties were affected by the purported fight of way. The Appellate Court further held that "[the MRTA] declares null and void any interest in real property not specifically described in the deed to the property which it purports to affect, unless within a forty year period, a notice specifically reciting the claimed interest is placed on the land records in the affected land's chain of title." (Emphasis added; internal quotation marks omitted.) Id., 395. "It is undisputed that none of the deeds in the defendants' chains of title . . . includes language conveying or describing a right-of-way in favor of the plaintiff's property." Id., 396.
In the present case, the property purported to be affected by the right of way is the property of the defendants. There was no habendum clause in any of the conveyances in the plaintiff's chain of title from 1880 to the present which would provide any notice whatsoever as to the plaintiff's claim of a right of way. Moreover, none of the deeds in the defendants' chains of title include language conveying or describing a right of way in favor of the plaintiff's property. Assuming, arguendo, that if the right of way had been recorded in the root deed of the defendants' properties the right of way would have been extinguished nonetheless by operation of law because the "specific identification of a recorded title transaction" creating the right of way was necessary to preserve it in accordance with § 47-33d(1). Because such identification was not recorded within forty years, the right of way would be extinguished. The court further finds that § 47-33d, the section of the MRTA that creates an exception from extinguishment for "apparent easements," is inapplicable in the present case because the evidence presented does not support such a claim.
In light of our Appellate Court's recent decision in Johnson, the court concludes that the plaintiff's claim of a right of way by deed is barred by the MRTA where the plaintiff and his predecessors in title failed to include the easement in subsequent deeds in the defendants' chains of title.
COUNT TWO
The plaintiff claims an easement by necessity in count two because the conveyance to the plaintiff's predecessor by the common grantor has left the parcel landlocked and the plaintiff has no access to any public highways. "An easement of necessity may occur when a parcel has become landlocked from outside access such that the owner would have no reasonable means of ingress or egress except over lands promised by another and a right of way is necessary for the enjoyment of the parcel . . . The inverse also is true; that is, a common-law right-of-way based on necessity expires when the owner of a dominant estate acquires access to a public or private road through another means." (Citations omitted.) Pender v. Matranga, 58 Conn.App. 19, 26, 752 A.2d 77 (2000). "[T]he element of necessity has been rather strictly construed and made to depend on the situation of both parties, the nature and adaptability of the property, and surrounding circumstances." Hollywyle Assn., Inc. v. Hollister, 164 Conn. 389, 401, 324 A.2d 247 (1973).
In the present case, the plaintiff alleges in paragraph 9 of the second count of' his complaint that the right of way is the "exclusive manner of access" to his property. The defendants argue that the plaintiff has not met his burden of proof in establishing an easement by necessity as set forth in paragraph 9. The evidence presented to the court demonstrates that the plaintiff and/or his guests had accessed his property on several occasions by alternate access routes. Additionally, the plaintiff's title searcher never completed a full title search on any of the abutter's properties to the north, south or east of the plaintiff's parcel. Accordingly, the court agrees with the defendants that the plaintiff has not met his burden of proving that no other access existed to his property other than through the purported right of way. To be sure, the plaintiff's property is landlocked, having been so rendered by his predecessor in title. Hence, it is true, as the plaintiff argues, that absent a right of way over some adjoining property, his property cannot be accessed from a public highway. However, it is not abundantly clear to the court that the plaintiff has any reasonable necessity for the claimed easement over the defendants' property. The defendants' property abuts the plaintiff's property to the west, but not to the north, south or east. The evidence does not establish that the plaintiff's property is inaccessible save over the defendants' lands, therefore, the court cannot find an easement by necessity.
The plaintiff testified at trial that when several individuals accessed his property on five separate visits, the individuals accessed the plaintiff's property by alternate access routes other than through the purported right of way. Q: "[W]hen the Historical Society went to your property, did they access it through the cart path or through an alternate access?" A: "Alternate route." Q: "When Mr. Finn went to your property twice, your surveyor, he accessed it through alternate accesses according to his testimony. Once from the east, I believe, and once from the west." A: "That's true. And he also walked the cart path and measured that out. So that's an access, is it not?" Q: "And when the loggers took the logs off your property the two times it was logged, that was through alternate access and not through the cart path?" A: "Correct." See Transcript May 11, 2005 at 4-5.
For all the foregoing reasons, the court finds in favor of the defendants on counts one and two.